Wednesday, January 22, 2014

Former Gov McDonnell not guilty of violation of Virginia law? Really?

Indicted Former Gov McDonnell (R-VA)
and spouse

Many of the news shows and even former governor McDonnell have declared or implied that taking "legal gifts and loans" from a donor are not a crime according to Virginia law and that the indictment was purely based on federal law. Really?

This statement was really puzzling. Are Virginia laws so loose that they would allow a governor to accept hundreds of thousands of dollars and gifts from a donor when it allegedly was taken in exchange for using his office and position of power to promote a product? Is the statement just incorrect? I needed to understand which it was.

Now understand that Virginia has some outdated and unusual laws. For example, it is illegal for couples to engage in sex with the lights on and only the missionary position are legal (we don't think the McDonnell's are guilty of this); but it seems that government officers should be held to higher standards when it comes to bribery.

A simple query of Virginia laws seems to indicate that the former governor's actions have violated Virginia laws as well. Below, is the section of Virginia law on "Prohibited conduct". I have highlighted the areas where the governor has run amuck.

§ 2.2-3103. Prohibited conduct.

No officer or employee of a state or local governmental or advisory agency shall:

1. Solicit or accept money or other thing of value for services performed within the scope of his official duties, except the compensation, expenses or other remuneration paid by the agency of which he is an officer or employee. This prohibition shall not apply to the acceptance of special benefits that may be authorized by law;

2. Offer or accept any money or other thing of value for or in consideration of obtaining employment, appointment, or promotion of any person with any governmental or advisory agency;

3. Offer or accept any money or other thing of value for or in consideration of the use of his public position to obtain a contract for any person or business with any governmental or advisory agency;

4. Use for his own economic benefit or that of another party confidential information that he has acquired by reason of his public position and which is not available to the public;

5. Accept any money, loan, gift, favor, service, or business or professional opportunity that reasonably tends to influence him in the performance of his official duties. This subdivision shall not apply to any political contribution actually used for political campaign or constituent service purposes and reported as required by Chapter 9.3 (§ 24.2-945 et seq.) of Title 24.2;

6. Accept any business or professional opportunity when he knows that there is a reasonable likelihood that the opportunity is being afforded him to influence him in the performance of his official duties;

7. Accept any honoraria for any appearance, speech, or article in which the officer or employee provides expertise or opinions related to the performance of his official duties. The term "honoraria" shall not include any payment for or reimbursement to such person for his actual travel, lodging, or subsistence expenses incurred in connection with such appearance, speech, or article or in the alternative a payment of money or anything of value not in excess of the per diem deduction allowable under § 162 of the Internal Revenue Code, as amended from time to time. The prohibition in this subdivision shall apply only to the Governor, Lieutenant Governor, Attorney General, Governor's Secretaries, and heads of departments of state government;

8. Accept a gift from a person who has interests that may be substantially affected by the performance of the officer's or employee's official duties under circumstances where the timing and nature of the gift would cause a reasonable person to question the officer's or employee's impartiality in the matter affecting the donor. Violations of this subdivision shall not be subject to criminal law penalties; or

9. Accept gifts from sources on a basis so frequent as to raise an appearance of the use of his public office for private gain. Violations of this subdivision shall not be subject to criminal law penalties.

McDonnell's lawyers have said that under the case presented by the federal government against him, any governmental official would be guilty if they did anything to promote a business, so even President Obama would be guilty in his promotion of Dream Works, for example. This comparison distorts the real facts in the case and mistakenly removes the illegal aspect of the crimes of the former governor.

How much money did Obama get from Dream Works? The difference between the President's actions and McDonnell's actions is that there is no personal benefit gained by the President in exchange for his kind words about Dream Works. In such cases "quid pro quo" is the rule. "Quid pro quo" means there is intensional exchange of goods or services in return for some personal gain. A "you scratch my back and I'll scratch yours" situation.

McDonnell was promoting a private company's tobacco based "medical" product known as "Anatabloc" by using the influence of his office in exchange for money, favors and gifts that only benefitted him and his family.

Only after news of these infractions became public did McDonnell pay back all money. He maintains his innocence and only admits to bad judgement. Since he paid it back, he now calls the money a loan.

McDonnell and his wife may face decades in jail and up to $250,000 in fines if found guilty.

Even if McDonnell's lawyers somehow manage to get him off, I think America expects more of our political leaders.